ON APPLICATION FOR A REHEARING.
In their application for a rehearing, counsel for the defendants do not assail the opinion of the court, but insist that the heirs of 01e_ Peterson are estopped for reasons not discussed therein. It is insisted that Ole Peterson himself could not, in his lifetime, have been heard to question the title of the defendant, because he received, as creditor of the estate of Olia Mikldeson, all of the proceeds of the sale of the land in controversy, and that inasmuch as he would, if living, be estopped, his heirs are likewise estopped. If defendant’s contention had any foundation in the facts of this case, we would strongly incline to the view that the estoppel had been made out. Certainly Ole Peterson could not receive and retain the proceeds of the sale of the land, knowing that they were paid by the purchaser in the belief that he was *619securing a perfect title to the land, and yet be heard, in a court of equity, to assail such title. Nor would the capacity in which he might receive such proceeds be material. But unfortunately for the defendants, the record is silent on the vital question of fact, on which rests the whole of this new argument. The record does not disclose the fact that Ole Peterson ever received a dollar of the purchase price of the land, or even that he was a creditor of the estate of Olia Mikkleson. The findings of fact contain no reference to the matter, and counsel for defendants have seen fit not to settle any statement of the case, and thus bring before us the'evidence. In such a condition of the record we cannot regard any assertions made by counsel touching facts which are not embodied in the findings of fact, or admitted by the pleadings. From neither source are we able to learn that Ole Peterson has ever derived any benefit from the sale which has been adjudged void.
(76 N. W. Rep. 233.)The petition for a rehearing is therefore denied.
All concur.